Contesting a will

A will is a document that empowers a testator to devise and bequeath their net assets on death.  A Court will always endeavour to ensure that the testator’s wishes are carried out, but there are circumstances where the will can be contested by anyone interested in the estate.

Disputing a will

In general terms, successfully disputing a will is a complex, highly risky form of litigation. To compound this, disputes about wills are highly emotive. A cool and clear head, strategic approach, consideration of law and facts and experience are needed when contesting a will. This means if you have doubts about a will, good legal advice is really important. We are experienced in will disputes, so please do get in contact if you need experienced, specialist lawyers.

Grounds for disputing a will

The following are the grounds for questioning the efficacy of a will:

Lack of testamentary capacity

The person who makes the will must understand the wording used and the fact that the document makes bequests from the estate, the value of the assets in the estate and how they are to be divided on death.  It is important that the testator appreciates any legal responsibility to those who may have a claim on the estate.  A person who has lost mental capacity through age or illness or the taking of drugs cannot make a will or make changes to an existing will.

Signing or executing the will was not validly carried out

To be valid a will must be in writing and signed by the testator in the presence of two independent witnesses all present at the same time as proof that the will was properly executed.

The testator did not understand the terms of the will and did not approve it

It is crucial that the testator fully understands the full extent of the contents of the will and that its provisions such as the level of gifts are in accordance with his or her wishes.

Undue influence

Occasionally strong feelings arise within families where one party has spent more time than others looking after the testator in his or her later years and pressure is brought to bear for extra provision to be made to favour of that individual.  Those closely associated with the deceased can sometimes also exert influence by taking advantage of the testator.  Clear proof of this after the passing of the testator will require sound evidence.

Fraud or forgery

If anyone other than the testator signs a will in his or her name or who gives the testator false information resulting in an adverse decision being made affecting a prospective beneficiary, the will can be declared invalid.

These grounds need to be proved to the satisfaction of the Court and such proceedings are never simple.  Strict observance of the rules is required, and it is easy for the uninformed person to overlook a provision of importance.  That is why it is so important to take professional advice on the making of a will.

Where you are the beneficiary under a will or you believed that you were to receive some benefit from the will, and you find that changes have been made of which you were not aware, you might wish to find out if a claim is open to you.

Equally so, where you already have an interest in the will as a beneficiary or an obligation as an executor, and a claim is being made against the estate, you may need to seek advice to understand your rights and duties.

Each case has its own separate peculiarities, and our firm’s expert private client lawyers are adept at ascertaining all the facts and giving you the advice that you seek.  If litigation ensues, our private client contentious department will guide and protect you through the intricate procedures.

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